An Overview of Florida’s Deceptive and Unfair Trade Practices Act, Part I: What Is FDUPTA, Who Does It Protect, Why Is It Needed, and What Is Actionable?

By: Charles B. Jimerson, Esq. and Sophie M. Hayashi, JD Candidate

Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) was passed by the Florida Legislature in 1973, and was designed as a state law complement to the Federal Trade Commission Act. 15 U.S.C. § 45. FDUTPA, sometimes referred to as the “Little FTC Act,” provides private remedies based on consumer protection law, which encompasses unfair, deceptive, and unconscionable acts or practices. This article, part one of a three-part series, first addresses the purpose of FDUTPA and who the act seeks to protect, why the act is needed, and what is actionable under the act.

In creating FDUTPA, the Florida Legislature intended “to afford due consideration and great weight to interpretations by federal courts and the Federal Trade Commission regarding definitions of unfair and deceptive practice.” The Florida Senate, Interim Project Report, 1 (2004). Business Litigation in Florida § 20.1 (2014). Thus, the State of Florida has decided that the purpose of FDUTPA is threefold:

  1. “to simplify, clarify, and modernize the law governing consumer protection, unfair methods of competition, and unconscionable, deceptive, and unfair trade practices;”
  1. “to protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive or unfair acts or practices in the conduct of any trade or commerce;”
  1. “to make state consumer protection and enforcement consistent with established policies of federal law relating to consumer protection;” Stat. § 501.202.

Who does FDUTPA protect?

The court in Office of the AG, Dep’t of Legal Affairs v. Wyndham Int’l, 869 So. 2d 592, 598 (Fla. 1st DCA 2004) held that FDUTPA “is designed to protect not only the rights of litigants, but also the rights of the consuming public at large.” FDUTPA broadly defines the term “consumer” to include: individuals; children; business; firm; association; joint venture; partnership; estate; trust; business trust; syndicate; fiduciary; corporation; any commercial entity; or any other group or combination. Fla. Stat. § 501.203(7). While consumer is broadly defined by the act, the protection afforded to consumers is qualified by the requirement that the consumer must suffer the injury while participating in either trade or commerce.

The court in In re Maxxim Medical Group held that “FDUTPA has no application to entities complaining of tortious conduct which is not the result of a consumer transaction.” In re Maxxim Medical Group, Inc., 434 B.R. 660, 693 (Bankr. M.D. Fla. 2010). FDUTPA defines “trade or commerce” to include: advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated. Fla. Stat. § 501.203(8). This is not a particularly difficult threshold to meet; as long as a consumer transaction occurs, an individual is afforded protection under FDUTPA.

Why is FDUTPA needed?

FDUTPA was in no way intended to contradict federal law, but FDUTPA was intended to fill in some of the gaps in the federal law pertaining to consumer protection. A major difference between the FTC Act and FDUTPA is that “the federal law does not authorize a private cause of action, whereas FDUTPA does, limited to recovery of actual damages to the consumer plaintiff.” The Florida Senate, Interim Project Report, 2 (2004). The private remedies under FDUTPA entitle individuals to “remedies that relieve the effects of the wrong and return them to their rightful position.” An Essay on Private Remedies, Emily Sherwin 90. The court held in Rollins, Inc. v. Butland that FDUTPA provides: “In any action brought by a person who has suffered a loss as a result of violation of this part, such person may recover actual damages, plus attorney’s fees and court costs as provided in s. 501.2105.” Rollins, Inc. v. Butland, 951 So. 2d 860, 868 (Fla. 2d DCA 2006).

What is actionable conduct under FDUPTA?

The court in In re Florida Cement & Concrete Antitrust Litigation, 746 F.Supp.2d 1291, 1320 (S.D. Fla. 2010) held that “a consumer claim for damages under FDUTPA has three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.” See also; Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 2d DCA 2006). Additionally, the court held that in order to state a FDUTPA claim for damages, “a plaintiff must show not only that the conduct complained of was unfair, unconscionable, or deceptive, but also that it has suffered actual damages proximately caused by the unlawful conduct.”

Additionally, the court in Office of the AG, Dep’t of Legal Affairs v. Wyndham Int’l, that “when addressing a deceptive or unfair trade practice claim, the issue is not whether the plaintiff actually relied on the alleged practice, but whether the practice was likely to deceive a consumer acting reasonably in the same circumstances.” Office of the AG, Dep’t of Legal Affairs v. Wyndham Int’l, 869 So. 2d 592, 598 (Fla. 1st DCA 2004). This standard of conduct favors the plaintiff bringing a claim under FDUTPA.

In order to bring an action against an individual, as opposed to a corporation, “a plaintiff must allege that the individual was a direct participant in the dealings.”Aboujaoude v. Poinciana Development Company II, 509 F. Supp. 2d 1266, 1267 (S.D. Fla. 2007). Whether an individual was a “direct participant in the dealings” is a determination for the fact-finder. The court in KC Leisure stressed the importance of “having actual knowledge of the violations” in order to be considered a direct participant. KC Leisure, Inc. v. Haber, 922 So. 2d 1069, 1073 (Fla. 5th DCA 2008).

Conclusion

FDUTPA protects consumers from unfair, deceptive, and unconscionable acts or practices and provides consumers with private remedies that are not available under federal law. The next article in this series will address the types of conduct that have been prevented under FDUTPA and the types of claims that are successful under FDUTPA.

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